Black children might have been better off
without Brown v. Board, Bell says

BY LISA TREI

While honoring the efforts and sacrifices of the people whose
struggles culminated in Brown v. Board of Education, the
Supreme Court case that ended school segregation in this country,
New York University Professor Derrick Bell provocatively suggested
last week that generations of black children might have been better
off if the case had failed.

Bell said the Supreme Court should have
enforced the "equal" portion of the 1896 "separate but equal"
ruling that segregated schools.Photo: L.A. Cicero

"From the standpoint of education, we would have been better
served had the court in Brown rejected the petitioners'
arguments to overrule Plessy v. Ferguson," Bell said,
referring to the 1896 Supreme Court ruling that enforced a
"separate but equal" standard for blacks and whites. While
acknowledging the deep injustices done to black children in
segregated schools, Bell argued the court should have determined to
enforce the generally ignored "equal" part of the "separate but
equal" doctrine.

Bell, a visiting law professor at New York University, lectured
at the opening of a symposium April 15-16 to mark the 50th
anniversary of the landmark Brown decision. Presented by the
Program in American Studies, the event included two discussion
panels that considered some of the unrecognized catalysts and
unintended consequences of the historic court case. (See related
story.)

Bell's address was largely based on his new book, Silent
Covenants, in which he writes about an imaginary court opinion
that would have upheld the "separate but equal" doctrine. But he
also spoke from deep personal experience.

During the 1960s, Bell handled hundred of cases involving school
litigation in the South as a lawyer for the NAACP Legal Defense
Fund. In 1971, he became the first tenured black professor at
Harvard Law School, but relinquished the position in 1992 when he
refused to return from a two-year, unpaid leave of absence he took
to protest the lack of women of color on the faculty. Since then,
he has been a visiting professor at New York University Law
School.

Bell said his argument echoed that made in 1935 by civil rights
pioneer W.E.B. Du Bois during a period when the NAACP was trying to
end segregation by focusing its litigation efforts on the stark
disparities between black and white schools. Du Bois, an NAACP
founder who originally had attacked Jim Crow laws and the
establishment of black schools, later came to the conclusion that
"Negro children needed neither segregated schools nor mixed
schools. What they need is education."

In May 1954, as civil rights advocates celebrated the
Brown decision, Du Bois, then 86 years old, noted that "no
such decision would have been possible without the world pressure
of communism," which rendered it "simply impossible for the United
States to continue to lead a 'Free World' with race segregation
kept legal over a third of its territory." Bell said that Du Bois
predicted, accurately as it turned out, that the South would not
comply with the decision for many years, "long enough to ruin the
education of millions of black and white children."

In 1976, Bell said he came to the same conclusion in an article
titled Serving Two Masters, which stated, "Our clients' aims
for better schooling for their children no longer meshed with
integrationist ideals. Civil rights lawyers were misguided in
requiring racial balance of each school's student population as the
measure of compliance and the guarantee of effective schooling. In
short, while the rhetoric of integration promised much, court
orders to ensure that black youngsters received the education they
needed to progress would have achieved much more."

Rather than resolving the nation's racial dilemma, the
Brown decision has made it more complex, Bell argued.
"Racial disparities, wide and widening in every measure of
well-being, overshadow the gains in status achieved by those of us
black Americans who, by varying combinations of hard work and good
fortune, are viewed as having 'made it,'" he said.

Instead, what Brown did for many African Americans was
legitimate the status quo. While they remained poor and
disempowered, their status was no longer a result of denied
equality. Rather, Bell said, it marked a personal failure to take
advantage of one's defined equal status.

In conclusion, Bell argued that Brown v. Board of
Education ultimately failed to remove barriers to equal
education based on race. "Our hopes that it would do so have been
replaced by a reluctant observation that it unintentionally
replaced overt barriers with less obvious but equally obstructive
new ones," he said. "The campaign continues."